STATE OF U.P versus SONU KUSHWAHA on 5 July 2023

1. The only question involved in this appeal is whether therespondent is guilty of an offence of aggravated penetrative sexual assaultpunishable under Section 6 of the Protection of Children from SexualOffences Act, 2012 (for short, ‘the POCSO Act’).

2. The respondent–accused was prosecuted for the offencespunishable under Sections 377 and 506 of the Indian Penal Code, 1860(for short, ‘IPC’) and Section 5 read with Section 6 of the POCSO Act.The learned 8[th] Additional Sessions Judge, Jhansi who was the SpecialJudge under the POCSO Act convicted the respondent for all threeoffences. The respondent was sentenced to undergo rigorousimprisonment for ten years for the offence punishable under Section 6of the POCSO Act and was directed to pay a fine of Rs.5,000/-. Therespondent was sentenced to undergo rigorous imprisonment for seven A

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Ayears for the offence punishable under Section 377 of IPC. For theoffence punishable under Section 506 of IPC, he was sentenced toundergo rigorous imprisonment for one year. For the last two offences,a fine was also imposed.

3. The respondent preferred Criminal Appeal No.5415 of 2018Bbefore the High Court of Judicature at Allahabad. By the impugnedjudgment, the High Court held that the respondent was guilty of theoffence of penetrative sexual assault punishable under Section 4 of thePOCSO Act and not the offence of aggravated penetrative sexual assaultpunishable under Section 6 of the POCSO Act. Therefore, his substantivesentence for the offence punishable under the POCSO Act was broughtCdown to imprisonment for seven years with a fine of Rs.5,000/-. Only tothis extent, the appeal was allowed.

4. It is not disputed that the age of the victim was less than twelveyears at the time of the commission of the offence. The facts of thecase have been summarised by the High Court in paragraph 3 of theDimpugned judgment, which reads thus:

“3. Tersely put, the case of the prosecution is that the complainantXYZ lodged an F.I.R. against the appellant Sonu Kushwaha on26.03.2016 at Chirgaon, District Jhansi stating therein that on22.03.2016, at about 05:00 hours in the evening, appellant SonuEKushwaha came to complainant’s house and took his son agedabout 10 years in the temple at Hardaul. There appellant gaveRs.20 to complainant’s son i.e. victim and said to suck his penis.Appellant Sonu Kushwaha put his penis into the mouth of thevictim. Thereafter, victim came to the house having that Rs.20.FAt this, complainant’s nephew Santosh asked to victim that fromwhere he got Rs.20, then victim told the entire happening occurredwith him. Appellant also threatened the victim not to disclose aboutthe incident to anybody.”

In paragraph 16, the High Court has recorded findings based onGthe evidence adduced by the prosecution. The relevant portion ofparagraph 16 reads thus:

“16. The proved facts of the case are that the appellant put hispenis into mouth of the victim aged about 10 years and dischargedsemen therein. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..”

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This finding has not been assailed by the respondent-accused ashe did not challenge the order of the High Court. After recording thesaid finding, the High Court concluded that the act committed by therespondent was of penetrative sexual assault which was punishable underSection 4 of the POCSO Act.

SUBMISSIONS

5. The learned counsel appearing for the appellant–State of UttarPradesh has invited our attention to the definition of ‘penetrative sexualassault’ under clause (a) of Section 3 of the POCSO Act. The learnedcounsel also pointed out that under clause (m) of Section 5, whoevercommits penetrative sexual assault on a child below twelve years, isguilty of committing aggravated penetrative sexual assault. He would,therefore, submit that the High Court has committed an error by holdingthat Section 6, which applies to aggravated penetrative sexual assault,was not applicable.

6. The learned counsel appearing for the respondent–accusedsubmitted that the respondent has already undergone the sentence ofseven years as modified by the High Court. He submitted that now therespondent is completely reformed. He also stated that the respondenthas moved ahead in life and in fact, recently he got married. He would,therefore, submit that it would be unjust at this stage to apply Section 6of the POCSO Act and send the respondent to jail to undergo furthersentence.

OUR VIEW

7. There is no dispute about the correctness of the finding recordedin paragraph 16 of the impugned judgment of the High Court, which wehave quoted above. In this context, it is necessary to note the definitionof ‘penetrative sexual assault’ incorporated in Section 3 of the POCSOAct. Clause (a) of Section 3 reads thus:

“3. Penetrative Sexual Assault.- A person is said to commit“penetrative sexual assault” if –

(a) he penetrates his penis, to any extent, into the vagina, mouth,urethra or anus of a child or makes the child to do so withhim or any other person; or (b).. .. .. .. .. .. .. .. .. .. .. ..

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[2023] 10 S.C.R.

A(c).. .. .. .. .. .. .. .. .. .. .. ..

(d) .. .. .. .. .. .. .. .. .. .. .. ..”

8. Section 2(a) of the POCSO Act provides that ‘aggravatedpenetrative sexual assault’ has the same meaning as assigned to it inSection 5. Therefore, we come to Section 5, which defines ‘aggravatedBpenetrative sexual assault’. Clause (m) of Section 5 reads thus:

“5.Aggravated Penetrative Sexual Assault. –

(a) .. .. .. .. .. .. .. .. .. .. .. ..

(b) .. .. .. .. .. .. .. .. .. .. .. ..

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(c) .. .. .. .. .. .. .. .. .. .. .. ..(d).. .. .. .. .. .. .. .. .. .. .. ..(e).. .. .. .. .. .. .. .. .. .. .. ..

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(g) .. .. .. .. .. .. .. .. .. .. .. ..

(h) .. .. .. .. .. .. .. .. .. .. .. ..

(i) .. .. .. .. .. .. .. .. .. .. .. ..(j).. .. .. .. .. .. .. .. .. .. .. ..

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(k) .. .. .. .. .. .. .. .. .. .. .. ..

(l) .. .. .. .. .. .. .. .. .. .. .. ..(m)whoever commits penetrative sexual assault on a childbelow twelve years; or F

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(o) .. .. .. .. .. .. .. .. .. .. .. ..

(p) .. .. .. .. .. .. .. .. .. .. .. ..(q).. .. .. .. .. .. .. .. .. .. .. ..(r).. .. .. .. .. .. .. .. .. .. .. ..(s).. .. .. .. .. .. .. .. .. .. .. ..

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(t) .. .. .. .. .. .. .. .. .. .. .. ..

(u) .. .. .. .. .. .. .. .. .. .. .. .., is said to commit aggravatedpenetrative sexual assault”

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9. Considering the finding recorded in paragraph 16 of the impugnedjudgment, obviously in this case, the respondent has committed an offenceof aggravated penetrative sexual assault as he has committed penetrativesexual assault on a child below twelve years. Clause (m) of Section 5 isattracted in this case.

10. Section 6, as applicable before its substitution on 16th August2019, read thus:

“6. Punishment for aggravated penetrative sexual assault.—Whoever, commits aggravated penetrative sexual assault, shallbe punished with rigorous imprisonment for a term which shallnot be less than ten years but which may extend to imprisonmentfor life and shall also be liable to fine.”

On the date of the commission of the offence, rigorousimprisonment for ten years was the minimum sentence prescribed forthe offence of aggravated penetrative sexual assault. From 16[th] August2019, the minimum sentence has been enhanced to twenty years.However, the amended provision will not apply to this case as the incidenthas taken place prior to 16[th] August 2019.

11. Surprisingly, the High Court has observed that Section 5 wasnot applicable, and the offence committed by the respondent falls underthe category of a lesser offence of penetrative sexual assault, which ispunishable under Section 4 of the POCSO Act. Thus, the High Courtcommitted an obvious error by holding that the act committed by therespondent was not an aggravated penetrative sexual assault. In fact,the Special Court was right in punishing the respondent under Section 6and sentencing him to undergo rigorous imprisonment for ten years witha fine of Rs.5,000/-.

12. The POCSO Act was enacted to provide more stringentpunishments for the offences of child abuse of various kinds and that iswhy minimum punishments have been prescribed in Sections 4, 6, 8 and10 of the POCSO Act for various categories of sexual assaults onchildren. Hence, Section 6, on its plain language, leaves no discretion tothe Court and there is no option but to impose the minimum sentence asdone by the Trial Court. When a penal provision uses the phraseology“shall not be less than….”, the Courts cannot do offence to the Sectionand impose a lesser sentence. The Courts are powerless to do that unlessthere is a specific statutory provision enabling the Court to impose a A

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Alesser sentence. However, we find no such provision in the POCSOAct. Therefore, notwithstanding the fact that the respondent may havemoved ahead in life after undergoing the sentence as modified by theHigh Court, there is no question of showing any leniency to him. Apartfrom the fact that the law provides for a minimum sentence, the crimecommitted by the respondent is very gruesome which calls for veryBstringent punishment. The impact of the obnoxious act on the mind ofthe victim-child will be life-long. The impact is bound to adversely affectthe healthy growth of the victim. There is no dispute that the age of thevictim was less than twelve years at the time of the incident. Therefore,we have no option but to set aside the impugned judgment of the HighCCourt and restore the judgment of the Trial Court.

13. Accordingly, the appeal is allowed. The impugned judgmentand order dated 18[th] November 2021 passed by the High Court ofJudicature at Allahabad in Criminal Appeal No.5415 of 2018 is quashedand set aside and the judgment and order dated 24[th] August 2018 passedDby the learned 8[th] Additional Sessions Judge, Special Judge POCSOAct, Jhansi in Special Session Trial No.134 of 2016 is restored.Accordingly, Criminal Appeal No.5415 of 2018 filed before the HighCourt stands dismissed. The respondent shall undergo rigorousimprisonment for ten years for the offence punishable under Section 6of the POCSO Act and shall pay a fine of Rs.5,000/-. We direct theErespondent to surrender before the learned Special Judge under thePOCSO Act, Jhansi within a maximum period of one month. On hissurrender, the Special Court shall send the respondent to prison forundergoing the remaining sentence for the offence punishable underSection 6 of the POCSO Act. On failure of the respondent to surrenderFwithin one month from today, the Special Court shall forthwith issue anon-bailable warrant against the respondent and ensure that therespondent is committed to prison for undergoing the remaining sentencefor the offence punishable under Section 6 of the POCSO Act. A copyof this judgment shall be immediately forwarded to the Special Court.

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Nidhi Jain(Assisted by : Varun Dhond, LCRA)

Appeal allowed.

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